and took the oath of office. Letters were issued to him on March 13, 1905. To all these orders of the probate court Valentine on the 14th of March, 1905, filed exceptions, and appealed therefrom, praying that a transcript be made and forwarded to the clerk of the district court. The transcript was filed in the office of the clerk of the district court on June 2, 1905.

Subsequent to the issuance of letters to Cheney and the filing of exceptions by Valentine, but prior to the sending up of the transcript, Cheney, as administrator, brought this action. Those are the pertinent facts. The contention urged by defendant is, in substance, that Cheney neither had nor has authority or capacity to bring or maintain the suit or to act as administrator of the estate of Ole Linge. It is based upon three propositions, which are in brief:

First. That the Juneau commissioner and ex officio probate judge never acquired jurisdiction of the proceedings or case, so as to give him the power or authority to enter the orders of which complaint is made, and therefore he could neither remove Valentine nor appoint Cheney; that Cheney's appointment was consequently void, and he could not maintain this action.

Second. That, even if the probate judge of the Juneau precinct had acquired jurisdiction, the appeal taken by Valentine, which is still pending, acted as a supersedeas, and therefore the appointment of Cheney was void.

Third. That the probate judge of the Juneau precinct has never revoked the letters of administration issued to Valentine, and therefore no vacancy occurred to warrant the appointment of Cheney.

And now let us see if the Juneau commissioner and ex officio probate judge acquired the jurisdiction of the Linge proceeding to enable him to remove Valentine as administrator and appoint Cheney in his stead. It may be appropriate to

look somewhat into the character and jurisdiction of probate courts in Alaska. Under the Oregon Code, which was in force in Alaska for many years prior to the enactment by Congress of the present system of laws known as the Alaska Codes, territorial or district probate courts were of inferior and limited jurisdiction. Farley v. Parker, 6 Or. 105, 25 Am. Rep. 504.

The Alaska Codes have not changed their character, and the probate courts of Alaska are still courts of limited and inferior jurisdiction. Section 6, Pol. Code, and section 943, Code Civ. Proc. (31 Stat. pp. 323, 480); 8 Am. & Eng. Ency. of Law (2d Ed.) 38; Sylvester's Adm'rs v. Willson's Adm'rs, 2 Alaska, 325. These courts are creatures of statute, and hence we must look to the statute to ascertain the jurisdiction. Congress, by section 6 cited above, has provided that the commissioner shall have "the jurisdiction conferred by law in any part" of the district of Alaska.

This section also directs that:

"The commissioners shall be ex officio *

probate judges

and shall perform all the duties and exercise all the powers, civil and criminal, imposed or conferred on the United States commissioners by the general laws of the United States and the special laws applicable to the district."

*

Since we are concerned only with commissioners as ex officio probate judges, what is "the jurisdiction conferred by law," and what are "the duties * * and the powers * imposed or conferred by the general laws of the United States and the special laws applicable to the district" upon them as such?

*

It seems unquestionably the fact that the general laws of the United States give no jurisdiction, impose no duties, and confer no powers upon commissioners as ex officio probate judges. By the process of exclusion, then, we find that we have only the special laws applicable to Alaska to search for

the desired information. In section 763 of the Code of Civil Procedure these special laws declare that:

"Commissioners appointed in pursuance of this act and other laws of the United States have jurisdiction within their respective precincts subject to the supervision of the district judge in all testamentary and probate matters"

-to perform certain acts and duties. It is to be noted that the jurisdiction of commissioners as ex officio justices of the peace and as ex officio probate judges differs. As the former, they may act anywhere in the district. Section 6, cited above. As the latter, they merely "have jurisdiction within their respective precincts." Therein the probate judges may:

"First, take proof of wills; second, grant and revoke letters of administration; third, direct and control the conduct and administrators"

settle the accounts of *

-and perform other acts, enumerated in the section, which are not germane to the question under consideration. It now seems proper to inquire as to what commissioner shall grant administration on intestate's estate. The answer is found in two sections of the Alaska Code of Civil Procedure. The first (section 774) declares that:

"Administration of the estate of an intestate shall be granted by the commissioner authorized to take proof of a will as prescribed in section 772."

And the second (section 772) that:

"Proof of a will shall be taken by the commissioner as follows: "First, when the testator at or immediately before his death was an inhabitant of the precinct, in whatever place he may have died."

The two sections thus lay down a statutory rule, to the effect that administration must be granted in the precinct of which the decedent was an inhabitant at or immediately before his death, irrespective of the place where he died. This rule seems arbitrary, and not liable to be changed or varied in

any case by considerations of convenience or expediency. For any exceptions to it, recourse must be had to the statute, and not elsewhere. The reason for the establishment of this rule is to prevent more than one administration upon any estate within the district. In re Harlan's Estate, 21 Cal. 182, 85 Am. Dec. 58.

Briefly, then, the special laws of the United States applicable to Alaska provide (a) that a commissioner, acting as ex officio probate judge, shall have, within his respective precinct, jurisdiction (b) to grant administration on the estate of an intestate (c) when the intestate at the time of his death or immediately prior thereto was an inhabitant of that commissioner's precinct. Ole Linge, the intestate herein, died in, and at the time of his death was an inhabitant of, the Douglas Island commissioner's precinct. At that time G. M. Irwin was the duly qualified and acting commissioner of the precinct. Under the provisions of the Alaska Code, above, he, and he alone, was vested with jurisdiction to grant the administration. Plaintiff argues that under the court order of July 24, 1900 (Journal A, p. 18), by which the various recording districts and commissioner's precincts were established, a commissioner from an adjoining precinct might have taken jurisdiction of the case. That part of the order to which counsel referred is as follows:

"That when either of said commissioners are absent from their precincts, or for any other reason are disqualified to serve in the trial of any matters brought before them, a commissioner from an adjoining precinct may take jurisdiction of such action or offense and may try such action or offense in such adjoining precinct in the place of such absent or disqualified commissioner."

In view of the section quoted above the court is unable to agree with counsel. The commissioner from an adjoining precinct undoubtedly might have gone into the Douglas precinct and conducted ordinary civil or criminal matters as an

ex officio justice of the peace; but as ex officio probate julge he had no jurisdiction outside of his own precinct, and no order of the district court could have given it to him. And even granting that the order quoted had given him jurisdiction to act in the absence or disqualification of the Douglas Island probate judge, he did not and could not have taken jurisdiction, since the Douglas Island probate judge was neither absent nor disqualified, but had properly assumed the jurisdiction of the Linge administration.

But counsel urges, Irwin having resigned as commissioner, the Douglas Island precinct having been abolished, the records and property of the Douglas Island precinct having been delivered to the Juneau commissioner, and the jurisdiction of the territory of the old precinct having been vested in him by another order of the court, the power under the order of July 24, 1900, was revived, and he took jurisdiction of the Linge case by virtue of the two. Such a construction is not reasonable. Irwin was neither absent nor disqualified. On the contrary, he was no longer a commissioner, and the precinct and court on Douglas Island had ceased to exist-were defunct. The plain purpose of the order of July 24, 1900, was to provide for an administration of the civil and criminal law in a precinct when the commissioner as ex officio justice of the peace of any given precinct was, for any reason, unable to perform the duties of that office. It was not made to meet any such contingency as has arisen here.

When Irwin resigned, and the Douglas Island court and precinct became defunct, on August 31, 1903, there were certain cases or proceedings pending and in process of administration. The Linge estate proceeding was one of these. One of counsel for plaintiff questions the propriety of applying the term "case" to a proceeding in a probate court. Whether it should be designated as a "case" or as a "proceeding" appears to the court to be a mere quibble over terms, which is without